Shahzad,

Although generally you are correct in that alot of "construction lawyers" don’t have hands on experience of actually building the job, I can name some that, by the time the claim comes to be heard, know the job and technicalities of building it as well as the people who built it.

There are now several people around who have worked for many years in the construction industry and have then decided to a become lawyer / barrister / Arbitrator - usually having done a course like the MSc in Construction Law & Dispute Resolution at Kings College, London. (I can highly recommend that one!!!) Leeds, Bristol and other Uni’s also do similar courses. Many other routes are available to people who want to go in that direction.

Whether an in depth understanding of the building of the job is needed depends on the circumstances of the claim. If it is substantially based on contractural technicalities then probably not. A knowledge of the law and it’s interpretation of the contract is more important.

If it’s a claim dependant on events on site ie, the more usual case, then a good mix of industry and legal experience can only help although I still wouldn’t say it’s essential. The lawyer / barrister is usually just one of a team of people preparing the claim and it is the rest of the teams job to brief them.

By the time the claim has been put together the lawyer / barrister should have grasped what they need to know to present or defend the case - and it’s often not what people from an engineering / building background think it is. As usual horses for courses and as in any industry, some lawyers, ets are better than others. If they’ve got a decent amount of experience then they will know what they need.

A claims consultancies job is initially to gather the information, assess it (with legal help as required) and then advise the client as to the situation. If the client then wants to continue, (or has too because he’s defending an action) the claim consultancy job is to put together the claim / counter claim and brief the legal advisors / lawyers / barristers. Both to get their input into the claim / counter claim and to prepare them for the hearing.

I believe it is the claims consultancies job to tell their client whens he’s got a weak case and therefore to go and settle - do a deal. I do not believe it is the claim consultancies job to advise the client he has a chance then proceed to fight the case when it is apparent that he’s probably going to lose from day one (unless the client insists). Unfortunately this happens all too often for no other reason than to get fees.

Therefore, I would say that a client should be more careful who he choices as a claim consultant rather than who the lawyer / barrister will be at the end of the day. That initial advice, if given properly and in the clients interest, could save (or make) him a small fortune.

Returning to the core question of what are the Reasons for Failure of Construction Claims. In my experience the reason is often very complex and based around a degree of mis-trust between the contractor and the architect / engineer / supervising party.

Often construction claims are due to the programme not being met and with delays occurring, the contractor is in a position where it needs to submit a claim say, for an extension of time, in order to either recover additional costs, to avoid LAD’s, or both.

I say complex, because rarely is a delay due to a single event – most often it is caused by a combination of factors such as late design release, many small changes, contractor default, weather etc. It is not uncommon for a range of these type factors to have jointly culminated in a substantial delay. What nearly always happens however is the contractor overstates the impact of the late or changed design to cover his own faults.

Many of us have seen this situation. The contractor has not been reporting that the delays have been caused by its own default. The designers are blaming the contractor but cannot quite say why (the designer doesn’t understand the critical path – that’s why!). The client can’t understand why a few small changes have had such a big stated impact. In the rush to try to recover time, corners are cut and quality suffers. The relationships are beginning to break down. To cap it all off, the contractor submits a claim for an extension of time. The contract calls for a rapid response which doesn’t give enough time for the response to be properly considered. The EOT application is rejected because it doesn’t “feel” right. It is rejected because the contractor has been considered as not being honest in the claim. There is mis-trust all round.

Does this sound familiar? To me this is why claims fail. Yes, Ashu’s reasons in his original post are sometimes the reasons, but not the main reasons. They are too clear cut and well defined reasons, whereas the real situation is often much more complex and messy. That is why lawyers love construction claims. Messy equals big legal fees!

Gary France
Chairman
Planning Engineers Organisation

Dear Clive

In my opinion, it is all depend on the respective contract. If the contract clearly stated that the contractor should not proceed with the "additional" work, without client’s approval then they are at their own risk if proceeding without informing the client. To me if they still proceed without even notifying me as the client, I definitely won’t entertain their claim in the future.

Off course there must be some balance between PR with the client and the contractual matters.

The issue is to interpret the "additional work". Sometimes the contract is vague. This where the problem starts.

NORZUL

I’m client representative. Basically contractor should not proceed with the additional work unless authorize by the client. The minimum contractor should do is at least officially inform (via letter) the client prior to the potential additional work. Off course this should be after having discussed with the client first.

I believe the above will avoid any dispute in the future.

The main reason for failure of construction claims is that these Claims are not compatible with the Contractual provisions and not submitted within the time prescribed in the Contracts so at the time of scrutinizing by the Engineer and Employer, these claims become time barred despite come to finalization and resolution.

Another reason for failure of claims is that these are not fully substantiated with supporting documents and procedural requirement

Hi Ashutosh,
Hi Stuart,

Nice to hear from a Nicmar Student ( if i m not wrong ) on this forum. I m also doing a Nicmar but a Distance Learner. Hope to hear more from u Ashutosh.

irfan

Ashu,

All of those you listed, but the biggest cause is probably that the Contractor wasn’t entitled to the claim in the first place!